Writing in The Chronicle of Higher Education, FIRE Director of Legal and Public Advocacy Will Creeley takes an incisive look at the free speech implications of the proposed Tyler Clementi Higher Education Anti-Harassment Act. The Act, about which we havewritten plenty and which no doubt rings familiar to many of our readers, was re-introduced in Congress last month by Senator Frank Lautenberg and Representative Rush Holt, both of New Jersey. It would amend the Higher Education Act to require colleges and universities to enact policies addressing student harassment in compliance with its terms in order to receive federal funding, and would redefine peer harassment in a way that conflicts with Supreme Court precedent and threatens students’ expressive rights.

As Will writes, the first problem with this proposed legislation is that it is in fact redundant in light of these institutions’ existing obligations under the law:

Colleges and universities already must maintain and enforce policies prohibiting discriminatory harassment under existing federal law. Sen. Frank R. Lautenberg’s office claims that the law would require "for the first time that colleges and universities have antiharassment policies on the books"-but this just isn’t the case, as any student-conduct administrator worth his or her salt could have told the gentleman from New Jersey. Perhaps Lautenberg, who sponsored the bill in the Senate, meant that it would require colleges to address harassment based on sexual orientation for the first time. But that wouldn’t be quite true, either: Courts have found that discrimination based on actual or perceived sexual orientation may qualify as actionable harassment, and the Department of Education has said the same.

Will then makes the point that the act would create an even bigger problem: it would entail a vague standard for peer harassment that conflicts with Supreme Court precedent and would thereby endanger student speech rights at our nation’s colleges and universities. As he says:

In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court defined hostile-environment peer harassment as conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." This exacting definition strikes an appropriate balance between protected speech and unprotected harassment-which is exactly why it has been cited for the past decade by colleges, courts, and the Department of Education’s Office for Civil Rights.

In contrast, the proposed legislation’s definition of harassment is vague and subjective. It defines harassment as "acts of verbal, nonverbal, or physical aggression, intimidation, or hostility" that are "sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment."

While this may seem functionally similar to the Davis standard, it isn’t. For one, the bill’s definition fails to require that the allegedly harassing expression be "objectively offensive." Without this built-in "reasonable person" standard, whether or not speech is actionable harassment will effectively be determined by the most sensitive student on campus, no matter how unreasonably offended he or she may be by protected speech.

The problems with the legislation unfortunately go on:

Making matters worse, the bill also fails to define what constitutes a "hostile or abusive educational environment," apparently leaving student-conduct administrators to determine whether or not speech is sufficiently "hostile" or "abusive" as they see fit. This newfound discretion would prove to be a curse to administrators: Fail to punish protected speech that an alleged victim deemed "hostile" enough to qualify as harassment, and risk a lawsuit from the accuser; punish speech that, despite being protected, seemed to create a "hostile" environment, and risk a lawsuit from the accused.

Unfortunately, the problems presented by the new bill wouldn’t stop there for college administrators. In addition to being forced to supply substance to vague terms when assessing student speech, administrators would face an equally fraught decision between implementing the new law and respecting decisions handed down in recent years by federal courts.

However, as Will points out, the answer to these problems is relatively simple, because the Supreme Court has provided the necessary guidance on matters of peer harassment in education:

Luckily, the problems with the legislation can be dealt with easily: The Davis standard should be written into the bill’s definition of harassment. That way the conflict between Congress and the courts can be avoided, student-speech rights can be protected, and truly harassing conduct can continue to be addressed. But even with that change, legislators and the general public should realize that new legislation isn’t always the answer. Remember, the unconscionable treatment of Tyler Clementi was already prohibited under both university policy and state criminal law.

Wise words for all to remember when it comes to this important and sometimes heated issue. Be sure to read Will’s piece in full in The Chronicle of Higher Education to get all of his excellent and timely analysis, and, of course, be sure to check back with us for future updates and analysis on The Torch.